Yesterday, in Wilkie v. Robbins, the Supreme Court held, 7-2, that a landowner cannot maintain a private cause of action for damages against federal government employees who engage in a campaign of "harassment and intimidation aimed at extracting an easement across public property." The dissent maintained that the Court majority failed to safeguard the "bedrock constitutional right" protected by the takings clause of the Fifth Amendment, which provides that private property cannot be taken for public use without just compensation. If government agents may retaliate against a private landowner who does nothing more than assert his constitutionally protected property rights, and face no legal consequence, property rights will be less secure.

The constitutional guarantee of just compensation would be worthless if federal agents were permitted to harass and punish landowners who refuse to give property without it. The Fifth Amendment, therefore, must be read to forbid government action calculated to acquire private property coercively and cost-free, and measures taken in retaliation for the owner's resistance to uncompensated taking.

Perhaps the most interesting thing about this passage is that it was authored by Justice Ruth Bader Ginsburg, and joined by Justice Stevens. Both were in the Court's majority in Kelo v. New London, and both have voted fairly consistently against the Fifth Amendment takings claims over the past decade. Yet in Wilkie v. Robbins, Justices Ginsburg and Stevens were most sympathetic to the claims of the aggrieved property owner.

Yeah somewhat hypocritical, but they have a fig leaf, as no property was taken it appears. Probably just them airing their guilty consciences over Kelo, and the people's response to it... a raft of property protection laws churning out of various states. Judges read newspapers too, I guess.

It isn't too surprising when you realize this was a Bivens case, not a takings case. Indeed, the government officials could not plausibly claim they were attempting a legitimate taking, since they offered no compensation whatsoever.

What this really shows, then, is what we already know: over time the Court has been packed with people who are pretty protective of federal officers, and none too fond of Bivens as a result. In other words, this case was about the abuse of authority, and the Court is packed with authoritarians.

The decision did not strike me as so terrible for landowners. The Court recognized that he had conventional tort remedies that he did not pursue; I assume part of any such trespass action, e.g., might be some claim for injunctive relief if he could show likelihood of repeat torts without an injunction. The malicioius litigation claim of the landowner (a response to government criminal proceedings) was questionable, as the trial judge didn't even award attorneys fees to the successful landowner--suggesting that the case wasn't that "thin." Etc.

All in all, the Court seemed to be saying, look, you have other remedies of a conventional nature; leave the constitution out of this. Not so unreasonable to me, and certainly not off the reservation.

I have a post here summarizing the ruling - it's quite unfortunate that it came down when it did, because it's been drowned out by the roar of the sexier 1st amendment cases. That's a shame, because it's an interesting opinion, and well-written by Souter.

As the dissent points out, a series of incident-by-incident remedies generally will not be adequate to deal with a pattern of retaliation by government officials. Indeed, part of the problem is that in the absence of a Bivens claim or a comprehensive federal statutory remedy, no one has the jurisdiction to punish them for the full scope of their actions, precisely because they can use so many different tools to retaliate against a person for exercising their constitutional rights.

Now, you can toss out Bivens if you want to argue there should be no remedy for such retaliation at all. Which, as I suggested, is what a lot of the Justices undoubtedly have in mind (Thomas and Scalia explicitly, in fact: see Thomas's concurrence).

It seems to me that the dissent makes hash out of Souter's line-drawing argument by pointing out that Robbins DID allege a retaliatory motive (despite Souter's odd claim to the contrary), which has always been considered an adequate answer to similar line-drawing issues.

Sadly, federal bureaucrats, who pretty much live consequence-free lives as it is, can now rest assured that actions and behaviors that would land ordinary folks in jail are now a-okay, as long as you are a fed.

I wonder, as the US becomes more and more like pathetic Europe, who will step into the void to pick up the torch for pesky human freedoms? Anyone? No one?